The Jencks Act and Defending Federal Criminal Cases

The Jencks Act

The origins of this Act are in a 1957 U.S. Supreme Court case called Jencks v. United States, 353 U.S. 657 (1957).  Clinton Jencks, a labor activist and union leader, was charged and convicted of filing a false “Affidavit of Non-Communist Union Officer” with the National Labor Relations Board.  Jencks swore in his affidavit that he was not a communist, but the Government alleged that he was.  The case against Jencks relied heavily on the testimony of two paid FBI informants. During the course of his trial, the defense moved to have the statements of these two witnesses produced (i.e., turned over to the defense) so that they could be inspected and used in cross examination at trial.  The trial judge denied that motion.

The Government essentially believed that it did not have to produce statements of witnesses against a defendant, made at the Government’s request, and who were paid by the Government for being a witness against the defendant.  The trial court agreed with the Government, and the appellate court did too.  Thankfully, the Supreme Court thought otherwise.

Unfortunately, this decision lead Congress that same summer to enact a new law which was (and still is) commonly referred to as the Jencks Act.  While disguising itself as a mere codification of the ruling made by the Supreme Court in Jencks, the Jencks Act actually makes it harder for criminal defendants to get a fair trial in federal court.

The Jencks Act, codified as 18 U.S.C. 3500, does a number of things–none of which are designed to compel the Government to turn over witness statements to the defendant in a meaningful way.  In paragraph(a) it protects the Government from having to disclose the statements of witnesses or prospective witnesses (other than the Defendant) until after the witness has testified on direct examination.  Imagine that.  Americans have a right to a trial where the government has the whole burden of proof, but no American is entitled to the statements of the witnesses or potential witnesses against him/her until after that witness has testified during trial.  As a practical matter this means that during trial, after each government witness testifies, the defense attorney must ask for, receive, and review statements, determine inconsistencies, and formulate a cross examination.  The Government, on the other hand, has had access to these statements and witnesses for months, if not years.

Paragraphs (b) and (c) provide little (and some would argue no) relief to the Defendant during this process.  Paragraph (b) says that the production of these witness statements is not automatic so if the attorney does not make a motion for Government to produce the statements, he/she gets no statements even if they exist.  Paragraph (c) further insulates the Government from disclosure of statements by allowing the Government to refuse to disclose the statements.  If the Government refuses to disclose the statements pursuant to paragraph(c) then the statements are reviewed in camera by a judge who determines whether they should be produced to the defendant.  It is true that paragraph (c) says that the court may recess the proceedings for “such time as it may determine may be reasonably required” for examination and use by the defendant.  But this is not the remedy it purports to be for a number of reasons:

  1.  As a practical matter, there is a limited amount of time a judge can give an attorney during a trial while the jury is waiting to prepare to make use of these new statements;
  2. At the point in time the when the Government is required to turn over the statements the trial has already started.  In practice this means that the case is two, three, four or more years old and any additional evidence (video recordings, audio recordings, text messages, other witnesses, etc.) have all disappeared or are otherwise no longer available to the defense not to mention that the trial attorney is likely only working with a few hours (at most) to make use of these things and subpoenas and investigations can take weeks if not months;
  3. Paragraph (d) of the Jencks Act which gives the Government the opportunity to simply refuse to follow a court order (although this could lead to a mistrial).

The great deference given to federal prosecutors and investigators in the disclosure of witness statements in a criminal case may come as a shock to people accustomed to criminal discovery in state courts.  For instance, Illinois Supreme Court Rule 412 requires the prosecution to turn over all witness statements “as soon as practicable following the filing of a motion by defense counsel.”  Many states have similar requirements; in fact, the American Bar Association recommends that prosecutors generally be required to turn over witness statements within 14 days from the filing of criminal charges [ABA Standards for Criminal Justice: Discovery, Fourth Edition (2020)].  The purpose of these provisions is to ensure that defendants and their counsel have sufficient time prior to trial to review statements of prosecution witnesses to (1) decide whether to go to trial at all, (2) investigate the defense case, and (3) prepare to cross examine witnesses at trial.  Federal defendants are not entitled to this luxury, and instead may only receive the minimal discovery required by Rule 16 of the Federal Rules of Criminal Procedure, and anything else which the Government attorney chooses to voluntarily provide (usually in an effort to convince the defendant to plead guilty).  This is one part of why defending the accused in federal court is a particularly demanding and onerous task.


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